Why You Can't Always Consent to Sex If You're Drunk

"There's a difference between tipsy and incapacitated."

The trial of three Toronto police officers accused of sexually assaulting a woman in January 2015 is coming to a close, and in his final arguments, the lawyer for one of the officers reportedly argued that drunken consent is still consent. But that's not entirely true.

According to CBC, attorney Alan Gold, who is representing officer Sameer Kara, said in court on Monday that the alleged victim consented to having sex with the three officer in question, saying that her consent was valid whether or not she was drunk. According to The Star, however, the alleged victim says she was lying on a bed, unable to move, while the officers assaulted her.

“I was powerless. I couldn’t move. I couldn’t talk. I couldn’t stop what was happening,” she reportedly said in court.

While the verdict in this case has not yet been reached, the statement Kara's lawyer made about drunk consent raises an important discussion. While there are definitely some instances in which someone can be drunk and consent to sex, Gold's statement isn't quite true. According to The Star, the victim alleges she was incapacitated at the time of her assault — unable to move or stop her alleged attackers. No matter what happened in this case, it's important to remember that alcohol can have the power to inhibit a person's ability to consent.

Sex educator Gigi Engle said someone who is very drunk cannot consent to sex. While the exact wording in consent laws differ from state to state in the U.S. and in Canada, many say that if you are incapacitated by drugs or alcohol, you are unable to give consent.

"If you are under the influence, you are not in your right mind to give consent," Engle told Teen Vogue. "You are also not responsible for a sexual assault if you chose to drink too much. The person who sexually assaulted you is to blame," she says. "It is really sad that we live in a world where a woman would be victim-blamed for enjoying herself at a party, where she should feel safe, only to be sexually assaulted by three men."

Of course, drunk people have sex all the time and do not consider it sexual assault. That's why it's important to note here the difference between being tipsy and being incapacitated.

"As she makes clear from her testimony, the complainant wasn't merely a little tipsy. Someone who is stumbling, unable to speak, and in and out of consciousness is absolutely not able to consent. Preying on people who have been incapacitated by alcohol can't be blamed on the person drinking, it's never the fault of the person who is assaulted," Teen Vogue's sex educator Lena Solow said. "There's a difference between tipsy and incapacitated. An incapacitated person cannot consent!"

It's also important to note that people may intentionally give someone alcohol as a way of lowering their boundaries.

While it can seem hard to know whether a person you're pursuing a sexual encounter with is too drunk to consent, Solow points out that there are actually indicators that someone is or is not able to do so.

"If you're going to have sex with someone, you're responsible for assessing if they are able to freely and enthusiastically say yes to sex," she said. "Someone who is stumbling, in and out of consciousness, and unable to speak is clearly unable to give you a solid yes. That means you should STOP any sexual activity."

If you can't tell whether your prospective partner is too drunk to consent, there's only one option.

"If you're concerned," Solow said, "it's always better to err on the side of delaying any sexual activity."